1 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES

WILLIAM LEE T H OMPSON v. WALTER A. M C NEIL, SEC RETARY, FLO RI DA DEPAR TMENT OF C O RR EC TIO N S
ON PETITI ON FOR WRIT OF CERTIORA RI TO THE UNITED STATE S COURT OF APPEALS FOR THE ELEVE NTH CIRCUI T No. 08–7 36 9. Dec i ded M ar c h9, 2009 J USTICE B RE YE R , dissenting from denial of certiorari. T h i s p e t i t i o na s k s u s t o determine whether the Eight h Amendment’s prohibition on “crue land unus ual punish

ments” pre c ludes the execut ion of a prisoner who has spent over 30 years ondeath row. J USTI CE S T EVEN Sand I have previously written that th is is a question that meri ts the Court’s attention, see, e.g., Lackey v. Texas , 514 U. S. 1045 (1995) (S TEVE NS , J., respecting denial of certiorari); Foster v. Florida , 537 U. S. 990 (1999) (B REYER , J., dis

senting from denial of certiorari); Knight v. Florida , 528 U. S. 990, 993 (1999) (same), and the delay here is even longer than the delay in those prior cases. Here, peti

tioner has been on death row for 32 years, well over half his life. For the reasons we have set forth in the past an d for many o f those added in J UST I CE S T EVE NS ’ sepa rat e statement, I would gra n t this petition. J USTICE T HOMASsuggests that petitioner cannot now challenge the constitutionality of the delay b e cause much of that delay is his own fault—he caused it by choosing to challenge the sentencethat the people of Flo r ida deeme d appropriate

. See ante , at 1 (opinion concurrin gin denial of certiorari). I do not believe t hat petitioner’s decision to exercise hi s right to seekappell ate review of hisdeath sentence automatically wai v es a claim tha tthe Ei gh th Amendment proscribes a delay of more than 30 years. See Gre g

g

v. Georg i a , 428 U. S. 153, 198 (1976) (j oint opinion of Stewart, Powell, and S TEVENS , J J .) (automatic appeal of2 THOMPSON v. M C NEIL

B REYER , J., diss enting all death sentences is “an importa nt addition al safeguard against arb i trariness and caprice”). But in any event the delay here resulted insignif icant part from constitution

ally defective death penalty procedures for which peti

tioner was not responsible. See Knight , su pra, at 993. In particul a r, the del a y was par t ly caused by the sen

tencing jud g e’s failure to allow the presentation and jury consideration of nonstatutorym i tigating ci rcumstance s , an approach which we have unanimously held constitu

tionally forb idden, see Hit c hco c kv. Dugge r , 481 U. S. 393, 398–399 (1987). As a result of this error, the Florida Supreme C o urt reman d ed for res e ntencing. See Thom p sonv. D u gge r , 515 So. 2d 173 (1987). At petition er’s resentencing, he presented substantial mitigating evidence, not previously presented, that sug

gested that he may be significantly less culpab le than his codefendant, who did not receiv e the death penalty. Peti

tioner, for example, introduced an affidavit of Barba r a Garrit z , wh o witnessed the crimefor which petitioner was sentenced to death. She desc ribed petitioner’s co defendant Rocky Sura ce as “an evil man” a n d “the devil, himself” and explained that he “m anipulate[d] people .

. . [into] follow [ing] his orders.” Tr. 2 473 (May 3 1 , 1989). By contrast, s h e described petitioner as “a bi g, easy-goi ng child who would do justabout anything to plea se” and who “never see m ed to hav e an idea o f his own.” Id. , at 247 4; see als o ibi d

. (“He wo uld do just about anything he was told”). She described t h e relationship between petitioner and Rocky as foll ows: “Bill wa s completely u n der Rocky’s spell. He hung on every word Rocky said a n d would do and say everything Rocky did a n d said. He was li ke Rocky’s dog. Rocky wo uld gi ve an order and Bill would do it, no qu esti ons asked. ” Id. , at 2475. With respect to the night in qu estion, sh e explained that, “Everything Bill di d, he did at Rocky’s direction, ju s tl i k eh ea l w a y s di dw h e nI was around the two. I saw what happened and I kno w3 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting that Roc ky started andfinished the whole thing.” Ibid. Garrit z ’s testimony wa s cons istent withthe picture o f petitioner painted by ot her witn esses. For example, one of petitioner’s teachers t e stified that while in elementary school petiti oner consis tently scored in the mi d-70’s on IQ tests; those scores qualified him for classes for the educa

ble mentally retarded. Id., at 21 78 (May 30 , 1989). His teachers also described him as “ s low,” a “follower” who was “always .

. . eager to please.” Id. , at 2185, 2186, 2185; see als o id. , at 2191–2192. A psychologist an d a psychia

trist who examined him both described him as showin g signs of brain damage, id. , at 2510, 2513, 2516, 2523 (June 1, 1989); s e e als o id. , a t2570–2571, 2577, an d a ps ychia

trist testifi e d that “ t h ekind of d i sorder [pet itioner] has, he’s easily led and felt very threatened by the co

defendant,” id. , at 2564; see als o id. , at 2602 (“There is no doubt in th e world tha tthis man basically appeared to be a rather—r ather dependent person who tends to follow the leader. He is n o t a leader hims elf. So, whatever Mr. Surace says , he probably goes along withit”). After hear

ing this evidence, the jury recom m ended a death sentence by a vote of 7 to 5. I refer to th e evidence only to point out that it i s fair, not unfair, to take account of the delay the State caused when it initially r e fused to a l low Thompson to pres ent it at the punishment phase of h i s trial. I would add that it is th e punishment, not the gruesome nature of the crime, which is at issu e. Reasonab le jurors m i ght, and did, disagree about the a p propriateness of executing Thompson for hi s role in that crime. The question here, however, is whether the Constitution permits that execution after a delay of 32 years—a de lay for which the State was in si gnificant part responsible. I believe we should gra n t the writ to consider that ques

tion.